Kam She-ming and Another v. The Queen
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CACC000006/1980
----------------- Coram: Garcia J. in Court Date of Judgment: 1 February 1980 ----------------- JUDGMENT ----------------- 1. Kam She-ming and Lo Wing-yin were ordered on 7th December 1979 to be bound over in the sum of $20 each to keep the peace and to be of good behaviour for a period of twelve months with no conviction recorded. They now appeal against those orders. Both the Appellants are students of Raimondi College and on the above mentioned date they appeared before the magistrate at Western Magistracy as prosecution witnesses to give evidence of an incident which occurred on 10th September 1979. As appears from their evidence the two Appellants were waiting for a route No. 12 bus at a bus stop in Robinson Road and the Second Appellant, recognising a former student of Form I of the same college by the name of Lam Chi-shing, stared at the latter whilst they were at the stop. All three of them then boarded the lower deck of the bus when it came and the two Appellants sat next to each other. Lam Chi-shing approached them and asked why the Second Appellant had stared at him and an argument ensued. The First Appellant intervened and asked them not to argue. Lam Chi-shing tried to strike the Second Appellant with his fists in the course of the argument but this blow was warded off by the First Appellant. They were then separated by someone on the bus and nothing further happened that day. However, one week later, on 17th September, the First Appellant was walking alone towards a bus stop near Prince Terrace when a person by the name of Li Wing-chun waved to him as if to ask him to approach, which the First Appellant did, and when he approached Li Wing-hun, the latter asked him about the incident which had taken place on the bus on the previous Monday. Whilst this conversation was going on, three other persons came towards the First Appellant and began assaulting him with clenched fists. As a result of the assault the First Appellant suffered minor abrasions. He was then requested to go to a quiet place to have a talk. While his assailants were having a discussion, he took the opportunity of running off, and his escape was noticed and he was pelted with glass bottles by someone whom he could not identify, but none of the bottles touched him. As he stopped to rest after the escape, two police constables came up and he made a report to them of the incident. 2. As a result of police intervention, five persons, including Lam Chi-shing and Li Wing-chun were arrested and all of them were inter alia charged with the offence of assaulting the First Appellant occasioning him actual bodily harm. 3. In the course of the trial of that charge and other charges before the magistrate the First Appellant's three assailants pleaded guilty to the lesser offence of common assault whilst Lam Chi-shing and Li Wing-chun were found not guilty of the said offence. All the five defendants were, however, bound over in the same terms as the two Appellants. 4. In his statement of findings regarding the order made against the First Appellant the magistrate gives his reasons for the order as follows :
5. With respect to the magistrate, it is difficult to see from the evidence adduced in the trial of the five defendants, or from the statement of facts in the file of proceedings, or from the cross-examination of the First Appellant by counsel how he came to the conclusion that the First Appellant from his short appearance in the witness-box could have been so categorized. In my view the contrary is probably true. 6. The second incident indicates that the First Appellant was a victim of an unprovoked assault and as to the incident on 10th September 1979 he had, as any right thinking person would do in the circumstances, asked Lam Chi-shing and the Second Appellant to stop arguing on the bus and also defended his friend from an assault. I do not think it correct to say that all the defendants were schoolboys. In the charge sheet the occupation of the Second Defendant is shown as that of a salesman, the 3rd, 4th and 5th are shown as being ushers and Lam Chi-shing, as the Second Appellant states in his evidence, was an ex-student of Raimondi College. The charge sheet also indicates that all the defendants are living quite a distance away from the place where the incident took place. The First Defendant lives in Happy Valley, the Second lives in Quarry Bay, the Third lives in the New Territories, the Fourth lives in Lai Chi Kok and the Fifth lives in Pokfulam. It is difficult to understand how the magistrate could envisage a similar recurrence in the same behaviour on the bus or elsewhere, given that the parties live far apart from each other and that the prime mover of the incident on the bus was in fact Lam Chi-shing. I draw attention to these matters because at no time during the cross-examination of the First Appellant by Lam Chi-shing's counsel was he ever asked about his previous conduct or behaviour concerning Lam. There was no evidence at all at the trial or of the Appellant's behaviour in court to suggest that he was of an argumentative, interfering and provocative nature except that there is a note made by the magistrate in the record to this effect: "This witness was reluctant to give evidence at times and is exaggerating his injuries". There is no other indication of the suggestions of his behaviour contained in the magistrate's statement of findings. Like the case of Shum Ling v. Ng Hon-keung and Another reported in (1962) H.K.L.R. at 579, I think there was an element of unfairness in requiring the First Appellant to be bound over although the magistrate had the power to do so. In my view, this was not a proper case for the exercise of that power. 7. As far as the Second Appellant is concerned, the magistrate in his statement of findings of fact states:
This seems to be an assumption which was unwarranted by the evidence in the short time during which the Second Appellant was in the witness-box. His evidence, according to the record, consists of only thirteen short sentences and he was not even cross-examined, and this would in my view, have not afforded the magistrate the opportunity of observing the Appellant in such a way as to enable him to reach those conclusions. The Second Appellant admitted in his evidence that he stared at Lam Chi-shing once whilst he was queuing at the bus stop and the magistrate states in the findings that the Second Appellant had not furnished any explanation for this conduct but at no time was he asked in the course of the trial why he had behaved in this manner. But even if he had given an adverse explanation of this particular conduct e.g. that he did not like the looks of Lam, such conduct does not, in my view, justify the attempted assault on him by Lam. Here again there was an element of unfairness in the binding over of this Appellant because there was nothing in the evidence which had indicated that he was likely to indulge in similar behaviour whatever that may mean in the context of that incident. In the result I allowed the appeals and the orders made against the two Appellants are set aside.
Representation: Appellants in person. Mr. G. Alderdice, Assistant Crown Prosecutor for Crown. |